The following Essay Questions are taken from the Constitutional Law volume of Siegel’s Essay & Multiple Choice Questions & Answers, a series written by Brian Siegel and published by Wolters Kluwer. The full volume contains 27 essays (with model answers), as well as 128 multiple-choice questions. (The majority of the essay questions were originally asked on the California Bar Exam, and are copyright the California Board of Bar Examiners, reprinted by permission.) To learn more about this book and other study aids, go to www.WKlegaledu.com.
QUESTION 1: City, a municipality of State X, has a permit ordinance that prohibits making speeches in the City-owned city park without first obtaining a permit from City’s police chief. The ordinance authorizes the police chief to establish permit application procedures, and to grant or deny permits based upon the chief’s “overall assessment of the good of the community.” The ordinance also provides that denial of a permit may be appealed to the city council.
On Tuesday, Tom applied to Dan, City’s police chief, for a permit to speak in the city park the following Saturday. Tom gave Dan his name and local address, but Dan denied Tom’s application for a permit because Tom refused Dan’s request for a summary of what he intended to say in his speech. When Tom told Dan that he intended to make his speech anyway, Dan immediately gave Tom’s name and address to the city attorney of City.
The city attorney did nothing about the matter until Friday, when, without notice to Tom, he made application on behalf of City to a State X court of general jurisdiction for a temporary restraining order preventing Tom from speaking in the city park without a permit. The State X court issued an ex-parte temporary restraining order and an order to show cause, answerable in five days, directed to Tom. The orders were served on Tom in the city park on Saturday as he was about to speak. Despite the temporary restraining order, Tom spoke to about twenty mildly interested persons who were then in the park for various other reasons.
The essence of Tom’s speech was that the federal government, “aided and abetted” by City’s government, was “leading America to destruction,” and that “those who would survive will eventually have to fight in the streets of City to regain their liberties.” Tom urged the audience to “stockpile weapons” and to “start thinking about forming guerrilla units to take back freedom from the government.”
Tom was arrested and charged in the State X court which had issued the temporary restraining order with (a) speaking in the city park without a permit, a misdemeanor, (b) contempt of court for violating the temporary restraining order, and (c) violation of the State X criminal advocacy statute prohibiting “advocating insurrection against local, state, or the federal governments,” a felony.
Five years ago, the State X Supreme Court construed the criminal advocacy statute as applying only to advocacy that is not protected by the United States Constitution.
A week after Tom’s speech, in a case unrelated to the charges against Tom, the State X Supreme Court construed City’s permit ordinance as authorizing the City police chief to consider “only the time, place and manner of the proposed speech, and not its content” in passing upon permit applications.
What rights guaranteed by the United States Constitution should Tom assert in defense to the charges brought against him, and how should the court rule? Discuss.